Jury’s inadvertent consideration of excluded exhibit is harmless error

EVIDENCE/TRIAL United States v. Muessig, No. 04-6005, ___ F.3d ___ (10th Cir. Oct. 26, 2005)(W.D. Oklahoma). Appeal of conviction and sentence for distributing pseudoephedrine with reasonable cause to believe it would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(2). HELD: Where district court excluded government exhibit as sanction for government’s failure to provide copy to defense prior to trial, but copy of exhibit was inadvertently sent to jury room, error was harmless because: (1) exhibit was cumulative in light of testimony from government witness about contents of exhibit, and (2) district court issued curative instruction directing jury to disregard exhibit and record gave no indication jury did not follow that instruction. Read the opinion here.